according to the modern English doctrine, which may be applicable with us, carriers may limit their responsibility by special notice of the extent of what they mean to assume. The goods in that case are understood to be delivered on the footing of a special contract superseding the strict rule of the common law; and it is necessary, in order to give effect to the notice, that it be previously brought home to the actual knowledge of the bailor, and be clear, explicit and consistent. The doctrine of the carrier's exemption by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward *v. Pittard, in 1785; and it was finally recognized and settled by judicial decision in Nicholson v. Willan, in 1804. The language of the court in Bodenham v. Bennet, and in Garnet v. Willan, is, that those notices were introduced to protect the carrier only from extraordinary events, or from that responsibility by mistake or inadvertence which belongs to him as an insurer, and not from the consequences of the want of due and ordinary personal Butler v. Heane, 2 Campb. Rep. 415. Cobden v. Bolton, Ibid. 108. Gouger v. Jolly, 1 Holt's Rep. 317. Mayhew v. Eames, 3 Barnw. & Cress. 601. Brooke v. Pickwick, 4 Bing. Rep. 218. It is not sufficient, in order to fix notice on a party, that it was inserted weekly in a newspaper which the party took. Rowley v. Horne, 3 Bing. Rep. 1. The difficulty of giving the requisite notice, said the K. B., in Kerr v. Willan, 2 Starkie's Rep. 53, arises from the attempt of the carrier to depart from the old rule of the common law. Burrough, J., S Taunt. Rep. 146. 5 East's Rep. 507. 4 Price's Exch. Rep. 31. e 5 Barnw. & Ald. 53. Mr. Bell strongly condemns the policy of restricting the responsibility of the common carrier by means of the notice; and he says the effect of notice ought legitimately to be confined to the regulation of the consideration for risk; and that the carrier ought, at all events, to be held to the ordinary diligence of the contract, and responsible for the reasonable amount of loss, according to the appearance of the package delivered, if the owner does not choose to pay the amount of the premium, unless he shows a special agreement, or evidence not merely, of notice, but of assent to that notice. 1 Bell's Com. 473-475. care and diligence. It has been strenuously urged in some of the cases, that there was no sound distinction, as to the responsibility of the common carrier under the notice, between ordinary negligence and misfeasance of him or his servants. Be that as it may, it is perfectly well settled, that the carrier, notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants; and the question of responsibility has generally turned upon the fact of gross negligence.a The English judges have thought that the doc*608 trine of *exempting carriers from liability by notice had been carried too far; and its introduction into Westminster Hall has been much lamented. The decisions in this country have shown a firmness of purpose not to relax the strictness of the English rule in respect to the responsibility of common carriers, and they have shown an inclination even to restrict the effect of notice upon that responsibility.c Batson v. Donovan, 4 Ibid. 21. Beck v. Evans, 16 East's Rep. 247. Birkett v. Willan, 2 Barnw. & Ald. Garnett v. Willan, 5 Ibid. 52. a Ellis v. Turner, 8 Term Rep. 531. Smith v. Horne, 8 Taunt. Rep. 144. 356. Sleat v. Fagg, 5 Ibid. 342. Duff v. Budd, 3 Brod. & Bing. 177. Lowe v. Booth, 13 Price's Exch. Rep. 329. Broock v. Pickwick, 4 Bing. Rep. 218. 12 B. Moore, 447, S. C. Wyld v. Pickford, 8 Meeson & W. 443. Carriers, after the notice, are not liable for a robbery by their servants, if there has been great carelessness on the part of the owner, and no gross negligence on their part. Bradley v. Waterhouse, 1 Danson & Lloyd, 1. ▷ See Smith v. Horne, 8 Taunt. Rep. 144. • Eagle v. White, 6 Wharton's Rep. 516. In the case of Barney v. Prentiss & Carter, 4 Harr. & Johns. 317, it was a question raised, but left undecided, whether a common carrier can exonerate himself from the responsibility, by means of a previous notice; but if he can, the notice should, at least, be plain, explicit and free from all ambiguity. It was, however, declared in Beekman v. Shouse, 5 Rawle, 179, and in Bingham v. Rogers, 6 Watts & Serg. 495, that common carriers might by special contract, limit the extent of their responsibility. In Atwood v. The Reliance Transportation Company, (9 Watts' Rep. 87,) Ch. J. Gibson questions the policy of the new rule, that the carrier may lessen his common law responsibility by a special agreement, and it was held that exceptions to the com In New-York, the English common law on the subject of the general responsibility of common carriers has been mon rule were to be strictly construed. In Ohio, in the case of Jones v. Voorhees, 10 Ohio Rep. 145, the court declared that the proprietors of stage coaches were common carriers, and that their liabilities could not be limited by actual notice to a traveller, that his baggage was at his own risk, and that a watch in his trunk was part of his baggage. So also, in New York, in the cases of Hollister v. Newlen, 19 Wendell, 234, Cole v. Goodwin, Ibid. 251, Camden R. R. Co. v. Belknap, 21 Ibid. 354, and Gould v. Hill, 2 Hill's Rep. 623, it was decided that stage coach proprietors, and other common carriers, could not restrict their common law liability by a general notice that the baggage of passengers was at the risk of the owners, even though the notice was brought home to the knowledge of the owner. Nothing short of an express contract or special acceptance as between the proprietor and owner would be sufficient. Those decisions contain very learned and able discussions of the subject, and the solidity and policy of the stern rule of the common law, are ably and successfully vindicated. But though common carriers cannot contract for a restricted reponsibility, yet other bailees for hire, may so contract and leave the whole risk in cases free from fraud, on the owner of the property; and it has been held that the owners of a steamboat undertaking for hire to tow a canal boat and her cargo on the Hudson river while the master and hands of the canal boat remain on board, and in possession and charge of the property, are not common carriers, but ordinary bailees for hire, and as it was stipulated that the canal boat was to be towed at the risk of her master, the owners of the steamboat were not responsible, even for the want of ordinary care and skill. Alexander v. Greene, 3 Hill, 1. But this case was reviewed and reversed in the New York Court of Errors, 7 Hill, 533. The English statute (1 Wm. IV. ch. 68,) made for the more effectual protection of common carriers for hire, declares, that they shall not be liable for the loss of, or injury to any property of the following description; that is to say, of gold or silver coin, or gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, &c., bills, notes, writings, pictures, plated articles, glass, silks, furs or lace, contained in any parcel to be carried for hire, or to accompany a passenger in any public conveyance, where the value exceeds 107., unless delivered as such with an express formal declaration of the value, and the carrier to be entitled to an increased rate of charge, according to previous notice. See Hinton v. Dibbin, 2 Adolph. & Ellis, N. S. 646, on the strict construction of the statute. No public notice is to limit the responsibility of the carrier in respect to other goods. The exception in bills of lading of goods on inland naviga. tion, of "dangers of the river which are unavoidable," narrows the liability of the boat-owner, and exempts him from liability for accidents and loss occasioned by hidden obstructions newly placed in the river, and which hu a fully, explicitly, and repeatedly recognized in its full extent; and equally in respect to carriers by land and water, and equally in respect to foreign and inland navigation. In Elliot v. Rossell, the whole doctrine was extensively considered; and it was understood and declared, that a common carrier warranted the safe delivery of goods, in all but the excepted cases of the act of God and public enemies; and that there was no distinction between a carrier by land and a carrier by water, whether the water navigation was internal or foreign, *609 except so far as the exception is extended to perils of the sea by the special terms of the contract contained in the charter party or bill of lading. It was further shown, that the marine law of Europe went to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence. The principle appeared to be sound and wise, and to have a very general reception among nations. The same doctrine was again declared in New York, in Allen v. Sewall;b man skill and foresight could not discover and avoid. Gordon v. Buchanan, 5 Yerger's Tenn. Rep. 71. Colt v. M'Mechen, 6 Johns. Rep. 160. Schieffelin v. Harvey, 6 Пb. 170. Elliott v. Rossell, 10 Ibid. 1. Kemp v. Coughtry, 11 Ibid. 107, Allen v. Sewall, 2 Wendell's Rep. 327. McArthur v. Sears, 21 Ibid. 190. b 2 Wendell's Rep. 327. The case of Aymar v. Astor, (6 Cowen's Rep. 266,) would seem to have gone far to unsettle and reverse the common law doctrine respecting carriers by water. But if there was not originally some inaccuracy or mistake in the statement or report of that case, it is to be considered as completely overruled by the case of Allen v. Sewall. This last case was reversed by the court of errors, (6 Wendell's Rep. 335,) on the ground that bank bills were not goods, wares, and merchandise, within the meaning of the statute incorporating the Steamboat Company, whose agent the defendant was, and that the carriage of such bills was not a part of their ordinary business, and was forbidden by instructions to the master. But the general doctrine in the text respecting the liability of common carriers was not disturbed. So, in the case of Camden Company v. Burke, 13 Wendell, 611, it was held that steamboat and railroad companies were liable for the baggage as common carriers; and even notice, brought home to the passengers, that all baggage to be at the risk of the and the owners of a steam boat, carrying light freight and parcels for hire, were held to be liable as common carriers. Bank bills were held to be goods, within the meaning of the law; and directions to the captain not to carry money did not excuse the owner, unless notice of such instructions were brought home to the shipper. There is no doubt, also, that the doctrine of the English common law, which declares that persons carrying goods. for hire by land or water, including all kinds of internal as well as external navigation, are common carriers, and liable for all losses happening otherwise than by inevitable accident, prevails generally in these United States, as part of the common law of the land. The slightest neglect or fault, levissima culpa, renders the master of a vessel liable.a owners, will not exempt the owners from the implied agreement that the vehicle is sufficient. But they are not responsible for the passengers if due care be used. Miles v. Johnson, 1 ■ McClure v. Hammond, 1 Bay's S. C. Rep. 99. M'Cord's Rep. 157. Cohen v. Hume, Ibid. 439. Bailey's S. C. Rep. 421. Murphy v. Staton, 3 Munf. Rep. 239. Bell v. Reed, 4 Binney's Rep. 127. Moses v. Norris, 4 N. H. Rep. 304. Craig: v. Childress, Peck's Tenn. Rep. 270. Gorden v. Buchanan, 5 Yerger's Tenn. Rep. 71. Turney v. Wilson, 7 Ib. 340. Faulkner v. Wright, 1 Rice's S. C. Rep. 107. Hennen v. Munroe, 11 Martin's Louis. Rep. 579. Smith v. Pierce, 1 Miller's Louis. Rep. 349. Spencers v. Daggett, 2 Vermont Rep. 92. Gilmore v. Carman, 1 Smedes & Marsh. Miss. Rep. 279. Hale v. N. Jersey Steam N. Co., 15 Conn. Rep. 539. Adams v. New-Orleans Steamboat Co., 11 Louis. Rep. 46. Alexander v. Greene, 7 Hill N. Y. Rep. 533. In this last case it was held, that the owners of a steamboat on the Hudson, engaged generally in the business of towing canal. boats for hire, were responsible as common carriers; and though the business was in that special case undertaken at the risk of the master and owners of the tow-boat, yet that the master and owners of the steamboat were in that case liable for ordinary neglect, and certainly for gross neglect; and there was evidence of both in that case. I was much struck in this case with the learning and ability of the lay members of the court of errors, several of whom gave separate opinions; and this case leads me to part with still deeper regret with the court of errors, which existed, and ge-nerally with great dignity and usefulness, from the independence of the state of New-York in 1777, down to its destruction and the substitution of the VOL. II. 59 |